Translated with AI
A coalition of Ukraine's allies has announced the creation of a special tribunal to investigate Russia's crimes against Ukraine. It is expected to begin operating in 2026.
A coalition of Ukraine's Western allies has endorsed the creation of a special tribunal to prosecute Russia for crimes against Ukraine, a symbolic move timed to coincide with Europe Day, a celebration of unity in the European Union.
After two years of behind-the-scenes work, the agreement was cemented on Friday, May 9, during a visit by foreign ministers to Lviv. The event was attended by representatives of almost 40 European and non-European countries, representatives of EU institutions and the Council of Europe, as well as Ukrainian Prime Minister Denys Shmyhal and Ukrainian Foreign Minister Andriy Sybiha.
The United States, which took an active part in such discussions under the previous administration of Joe Biden, did not attend.
"Every inch of Russia's war has been documented. This leaves no room for doubt that Russia is in clear violation of the UN Charter. This leaves no room for impunity. Russia's aggression will not go unpunished," said the head of European diplomacy, Kaja Kallas.
"It is absolutely clear that when this war is over, those who committed crimes in Russia must answer for their crimes of aggression and crimes against humanity," added British Foreign Secretary David Lammy.
The statute agreed upon by the coalition provides for the creation from scratch of a special tribunal, the main task of which will be to investigate the preparation and implementation of a full-scale invasion of Ukraine.
Unlike war crimes, crimes against humanity and genocide, which are committed against specific individuals, the so-called crime of aggression is a crime committed by the leadership of the aggressor state.
In practice, this concerns the so-called “troika” – the president, prime minister and foreign minister, as well as high-ranking military leaders who oversaw the attack on the sovereignty and territorial integrity of Ukraine.
The main target is Russian President Vladimir Putin.
The tribunal will have the power to impose severe penalties on those found guilty, including life imprisonment for serious crimes, confiscation of personal property and monetary fines.
Proceeds from any confiscations and fines will be transferred to a new compensation fund for Ukrainian victims.
The Council of Europe, which will meet in Luxembourg on 13-14 May, must now vote on the creation of the special tribunal. The tribunal is expected to begin work in 2026.
"This is not just a diplomatic milestone, it is a solemn promise to victims, to history and to future generations that justice will prevail and sustainable peace will be built on truth, accountability and the rule of law," said EU Justice Commissioner Michael McGrath.
Legal difficulties
However, the special tribunal will face serious obstacles before achieving results.
In particular, trials will be held in absentia, without the physical presence of the accused in the courtroom; they will be represented by a lawyer.
But most importantly, the "troika" will remain untouchable as long as they retain their posts. The prosecutor can bring charges against Russian President Vladimir Putin, Prime Minister Mikhail Mishustin, or Foreign Minister Sergei Lavrov, but the trial will be suspended until one of the accused resigns.
"Once they leave office, a full trial will be possible," the anonymous EU official explained. "There will be no impunity. Immunity is a temporary suspension of the trial while the person is in office. Nothing more, nothing less."
Trial in absentia may also be held for military commanders. Those convicted in absentia will be entitled to a retrial if they ever appear in person.
The potential defendants are estimated to include between 20 and 30 Russian officials, including Chief of the General Staff of the Russian Armed Forces Valery Gerasimov, Commander of the Russian Air Force Sergei Kobylash, and former Defense Minister and current Secretary of the Security Council Sergei Shoigu, for whom the International Criminal Court (ICC) has issued arrest warrants.
The ad hoc tribunal is intended to fill a gap left by the ICC, which has jurisdiction to prosecute the crime of aggression, but only if the crime is committed by a state party. Russia is not a signatory to the Rome Statute. Moreover, Russia can use its veto power in the UN Security Council to block any international proceedings.
Like the ICC, the new court is expected to be based in The Hague after the Dutch government expressed interest in hosting the body. It will be funded by all member states, the EU and the Council of Europe. Prosecutors and judges will be appointed by a panel of independent experts.
Without America
The fact that the US did not come to Lviv exposed the deepening rift between Washington and its European allies.
Since returning to the White House, Donald Trump has been promoting rapid diplomatic rapprochement with Vladimir Putin and has even repeated a number of Kremlin talking points, including calling Ukrainian President Volodymyr Zelensky a “dictator without elections.”
"The suspension of US participation in the process of establishing the tribunal is one of about a dozen important concessions that the new US administration has made to Putin," Polish Foreign Minister Radoslaw Sikorski said on the eve of his trip to Lviv. "I have not seen a single concession from Putin, and I hope that President Trump, who is so well known as a negotiator, will draw the right conclusion."
There is still hope in Brussels that the White House will change its mind and join the initiative, which remains open to any country willing to participate. Trump’s relationship with Zelensky appears to have improved after their brief meeting at the Vatican for Pope Francis’ funeral and the signing of a long-awaited minerals deal.
"I expect the US to eventually join because it has a very good track record of cooperation with the Council of Europe. I have reason to believe that the US will be helpful in this process," the EU official said.
The last time people were held accountable for the crime of aggression was during the Nuremberg Trials after World War II. At that time, the charges were called "crimes against peace."
